Many thanks to the Washington D.C. Chapter of the American Immigration Lawyer's Association for inviting me to speak at their conference this week. I spoke on a panel that addressed advanced issues concerning the Affidavit of Support, with my comments focusing on enforcement of the I-864 as a contract. Since I had a bit more material than we were able to cover, I have recorded the full presentation and made it available here.
You find our articles on the relevant case law here. An article with updated resources is in the works now and should be available before the end of the year.

If you have questions, please feel free to jump into the comment section following this post.

Immigration attorneys know that the immigration agencies are notoriously picky about the I-864, Affidavit of Support. Small errors (real or perceived) can cause the Form to be rejected, causing lengthy delays in case process. Some of us wondered, "what rule book are these guys playing by?" While the USCIS Adjudicators Field Manual, and State Department's Foreign Affairs Manual are both publicly available, guidelines used by front line adjudicators aren't.

So what to do...

If you're noted immigration attorney, Charles Wheeler you file a Freedom of Information Act (FOIA) request and get the inside story. Charles has obtained a 1,899-page response, providing the standard operating procedures (SOP) for how USCIS reviews I-864-series forms. With Charles' permission I'm making those FOIA results available here.

Probably because of the processing time for FOIA requests, the guidelines reference a prior version of the Form I-864. In fact, the Form I-864 will be changing yet again in coming months. But the SOP still provide a helpful window into how the agency reviews these forms.

I've taken a first crack at drafting a checklist for reviewing Form I-864s prior to submission. The checklist is modeled off of the one in the FOIA results (starting at page 28 of Part 1, linked below). With the help of my colleague, Gustavo Cueva, I've tried to update the checklist so it works with the now-current Form I-864. It's definitely a work in process, and comments for improvements are most welcome. You can download the flow chart in Excel for aremat here: 2015_06_19_864 flow chart. Important disclaimer: by using this checklist you agree no attorney/client relationship exists, and agree to exercise independent judgment in preparing and filing the Form.

If you'd like to dive into the FOIA results in detail, here they are. Due to the size they're broken up into smaller parts.

A recent Pennsylvania case illustrates one way that family law attorney can fruitfully use the I-864: to catch sponsors who under-report income and assets in divorce cases.
F.B. v. M.M.R. involved a United States citizen (USC) who petitioned for his foreign national (FN) Egyptian wife. No. 31715 (Mar. 17, 2015 Penn. Sup. Crt.). The background is somewhat confusing but important for understanding the case. The USC and FN appear to have been married in Egypt before starting the immigration process. Apparently due to concern that the marriage wouldn't be considered valid, the USC petitioned for his wife as a fiancee.

Fiancee "non-immigrant" visas, unlike marriage based "immigrant" visas do not require a form I-864. In fact, it is a violation of the Foreign Affairs Manual for the consulate to require an I-864 in fiancee cases. Rather, the USC completes a non-binding form I-134, Affidavit of Support, the predecessor to the contractually binding I-864.

The marriage fell apart during the immigration process, though the wife entered the US on the fiancee visa and thereafter lived with her USC husband for six years. The couple drafted paperwork to complete the adjustment of status process, including the Form I-864. But these papers were never actually filed.

In subsequent divorce proceedings, the wife argued that she was entitled to financial support based on the Form I-864.

Initially the trial court granted support based on the I-864. But the court later granted reconsideration and reversed it's decision, on evidence that the I-864 had not actually been filed. The Court determined that the obligation under the Form I-864 didn't begin unless the wife became a resident based on submission of the Form. This is consistent with a straight-forward reading of the I-864 provisions.

But the Court did use the I-134 Affidavit of Support in a different, interesting way.On the Form I-134, the sponsor had reported that he earned $128,000 per year and had assets worth more than $3.7 million. Like any sponsor, during the immigration process he had the incentive to demonstrate substantial income. Later, in the divorce Court, his incentive was the opposite. But the wife was able to use his Affidavit of Support to show his income-earning ability and previously reported assets.

Now generally it would be tough for a sponsor to overstate income and assets on an Affidavit of Support. Especially the I-864 - as opposed to I-134 - is minutely scrutinized by the State Department, which takes a careful look at supporting documentation. Both income and assets have to be shown by documentation.

But this does serve to emphasize that a sponsor might want to be careful about reporting assets, period. For the Form I-864 the sponsor is not required to report assets at all if his income is at or above the sponsored level. In this case the sponsor's income would almost certainly have been enough, regardless of assets. Where the income is enough, it would be a good idea for the sponsor - of the attorney advising him - not to include assets. If assets are unnecessarily reported the I-864 could later be used as evidence in a divorce proceeding, such as this case. On the flip side, family law attorneys will want to be sure to request the Form I-864 in discovery for exactly this reason. Even in cases where the I-864 beneficiary earns too much to sue for I-864 immigration financial support, the Form I-864 might be helpful evidence to examine the sponsor/spouse's income and assets.

In Du v. McCarthy, a Federal District Court in the Northern District of West Virginia has refused to dismiss a lawsuit brought against an I-864 sponsor. No. 2:14-cv-100 (N.D. W. Va. Mar. 26, 2015) (report and recommendations). [The magistrate's recommendations were upheld by order of a district court judge issued April 16, 2015]. The case raises at least one completely new issue, as discussed below.

Background

The parties were married in 2012 and divorced in 2014. Following marriage, the U.S. citizen husband executed a Form I-864 for his wife. In the divorce action, the husband was ordered to pay a small amount of temporary spousal support. But the divorce court specifically stated that the spousal support order was not based on the Form I-864, since those rights had not be pleaded.

Discussion.

The defendant brought a motion to dismiss, asserting several arguments.

First, he argued that his wife could not bring the I-864 claim because she failed to raise it in the divorce case. In Yaguil v. Lee, a different federal court had dismissed a claim by an I-864 beneficiary since the claims had been raised in a preceding divorce case. No. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D. Cal. April 10, 2014). But in the Du case, the claims were never litigated in the divorce court.

Accordingly, the issue of support under the Form I-864 was never raised in the parties' divorce proceedings; therefore, there was never a final judgment on the merits of Plaintiff's claim.

This conclusion is consistent with the reasoning of other courts: if the I-864 is not raised in the divorce proceeding, the beneficiary may bring a separate lawsuit. In fact, even if she does attempt to assert a claim in the family law court, she may still have a right to bring a separate lawsuit, since the family law court may decide not to rule on the claim.

The defendant's second argument was that the beneficiary was filing a petition under the Violence Against Women Act (VAWA). A "self-petitioner" under VAWA files an I-360 petition for herself, as well as a Form I-864W to demonstrate that for such a petition she is not entitled to file a Form I-864. The defendant appears to have argued that if the plaintiff secured residence based on a Form I-360 petition, she would no longer be entitled to support under the I-864 that the defendant signed.

I'm not sure that's right. In this case, the court didn't have to decide the issue, because the defendant didn't prove that the I-360 had actually been approved. But let's look at the issue.

There are only five events that end a sponsor's obligations. The beneficiary:

becomes a U.S. citizen;

can be credited with 40 quarters of work;

is no longer a permanent resident and has departed the U.S.;

after being ordered removed seeks permanent residency based on a different I-864; or

dies.

So let's say you have a sponsor who petitions for his wife. She gets 2-year conditional residency (it's a new marriage) and they get divorced before jointly petitioning for her 10-year (renewable) green card. First of all, in most cases the strategy will be to file an I-751 waiver application. Both the I-360 and the I-751 (at least on one strategy to secure approval) require the beneficiary to demonstrate abuse. But let's just assume she is first a conditional resident, then secures an approved I-360 uses that as a strategy for long term residence.

Was any of the five terminating conditions met? I don't see how. Condition (3) is met only if she departs the U.S. after losing status (which happens by operation of law at the end of the 2-year residency period). Condition (4) is met only if there's an order of removal and a new I-864... but in this hypothetical there is neither. I think that even if the I-864 beneficiary had (for whatever reason) received approval on the VAWA self-petition she would still be eligible to receive support.

Here's a question I get frequently from I-864 sponsors: if the person I sponsors gets into a serious accident, am I going to have to pay the medical bill? Short answer: probably not.

There are two different financial promises made by a person who signs a Form I-864, Affidavit of Support. The first is to ensure the beneficiary has income at or above 125% of the Federal Poverty Guideline. There is a lot of information about the obligation available on this site (start here to learn more).

The second promise is the one that creates concern about medical bills. Here's the language in the Form I-864 itself:

If a Federal, State or local agency, or a private agency provides any covered means-tested public benefit to the person who becomes a permanent resident based on the Form I-864 that you signed, the agency may ask you to reimburse them for the amount of the benefits they provided. If you do not make the reimbursement, the agency may sue you for the amount that the agency believes you owe.

In other words, if the I-864 beneficiary receives certain public benefits, the sponsor can be sued for the cost of those benefits. Let's take a closer look at how this works.

What is meant by means-tested public benefits?

"Means-tested public benefits" is a legal term of art. Generally, these are a type of federally-funded public benefit programs, loosely referred to sometimes as "welfare". (The term welfare is so broad it really doesn't mean anything, and it's not a legal term). According to the Department of State's description of means-tested benefits, they include:

Food stamps;

Supplemental Security Income (SSI);

Medicaid;

Temporary Assistance for Needy Families (TANF); and

State Child Health Insurance Program (CHIP).

Importantly, notice what's not on that list: general debt. So let's say the I-864 beneficiary goes out and buys a flat screen TV on credit, then doesn't pay the bill. The government isn't going to swoop in and sue the sponsor, because the TV debt has absolutely nothing to do with a means-tested public benefits program.

What about medical debt? That really depends on how the medical care was delivered. The government can come after the I-864 sponsor only if there was a means-tested public benefit. If an I-864 beneficiary is enrolled in Medicaid and has a car accident, definitely the I-864 sponsor could be sued for a huge amount of money.

But the government cannot sue the sponsor merely because a hospital provided expensive services to the I-864 beneficiary. Again, if the beneficiary didn't receive a means-tested benefit, the government cannot come after the sponsor.

Could a medical provider sue the sponsor directly?

So far we've been talking about the government getting involved to seek repayment of benefits. Can a medical provider sue an I-864 sponsor if the beneficiary has medical debt?

Remember there are two promises in the I-864: (1) ensuring income to the beneficiary; and (2) repaying means-tested public benefits. Looking at the first promise, a hospital could say that the sponsor's income should be available to the beneficiary to repay medical bills.

First off, I have never heard of a medical provider suing an I-864 sponsor. Moreover, it is unlikely that such a lawsuit would succeed. The I-864 is a contract between the sponsor and the United States government. In contract law terms, the immigrant is a "third-party beneficiary" of the I-864. This means that she has the ability to enforce rights under the contract even though she isn't a party to the contract (meaning she wasn't one of the parties entering into the agreement... it was just made for her benefit).

The I-864 makes very clear that the immigrant is a third-party beneficiary with rights to enforce the contract. So does the federal statute that creates the I-864. But there are no similar provisions for medical providers. It would take some very creative arguments by a hospital to explain why they have the legal ability to enforce rights under the I-864 contact.

I won't go on the record saying this sort of lawsuit is completely impossible, but success seems unlikely. If you've heard of such a suit, please let me know!

Bottom line.

Here's the bottom line:

The government gets involved only if there are means-tested public benefits. The government can't sue the I-864 sponsor just because the I-864 beneficiary has general debt, including medical debt.

There is no obvious way that a medical provider could sue the I-864 sponsor directly, since the I-864 doesn't say that such third-parties can enforce the contract.

Footnote: government suits against sponsors seem to be rare.

Even in cases where an I-864 beneficiary does receive public benefits, it is rare for the sponsor to be sued. I'm not aware of a single case in my home state of Washington where an I-864 sponsor has been sued by government agencies. In the recent past there were some efforts made to collect the cost of benefits from I-864 sponsors on the East Coast, including New York. But I haven't heard any reports of such cases in the past year.

Certainly a sponsor cannot assume he won't be sued. Government agencies have the right to seek repayment of means-tested public benefits, so sponsors shouldn't rest too easily just because this doesn't happen all the time. The point is only that it appears to be relatively rare that this happens.

Following a bench trial to a federal judge, a joint sponsor has been held liable for $10,908 in damages to an I-864 beneficiary. In Matloob v. Farhan a Pakistan national brought suit pro se against her former husband and his uncle, who signed an I-864, Affidavit of Support as a joint sponsor. Civil No. WDQ-11-1943, 2014 WL 1401924 (D.Md. May 2, 2014) (Memo. Op.).
The marriage at issue was arranged between the Pakistan national wife and a US citizen husband. Because of the husband's low income, in order to meet sponsorship requirements for a spousal visa he was required to secure an additional "joint sponsor" I-864, which was executed by his uncle.

A trial, testimony established that the beneficiary-plaintiff had suffered physical abuse by her sponsor-husband. She suffered the abuse when the sponsor-husband was physically unable to consummate the marriage, shortly after her arrival to the US. When the couple sought medical advice for this issue the doctor discovered scares and bruising on the beneficiary-plaintiff and the police became involved. Following a bench trial the District Court concluded that the I-864 defendants had failed to carry their burden of proof on the defense of fraud. Although it was not contested that the marriage dissolved shortly after the beneficiary's arrival in the US, there was insufficient evidence she had fraudulently induced marriage to secure an immigration benefit.

The judge readily concluded that both sponsors were jointly and severally liable for I-864 support. The beneficiary-plaintiff had been unemployed for all of the 2010 calendar year, and had moved from the husband's house in March of that year. The court therefore ordered support in the amount of $10,908, which represented 125% of the Federal Poverty Guidelines for the 2010 calendar year, pro-rated for the period of time during which the beneficiary-plaintiff had resided with her husband. The beneficiary-plaintiff was instructed to seek reasonable attorney fees and costs via motion.

The Matloob decision delivers no real surprises, but provides one of the few examples where an I-864 joint sponsor has been held accountable.

Oral arguments have been set in the first Washington State appeals case to consider issues relating to the I-864, Affidavit of Support. The principal issue in Matter of Khan (Div. II 44814-9-II) is the appropriate duration of spousal maintenance. In Khan the trial court agreed that it was appropriate to award spousal maintenance to an I-864 beneficiary based on the husband's support duties under the Affidavit of Support. But in Khan the trial court set the duration of support shorter than the 5 terminating conditions set forth in the I-864. The appellant-beneficiary argues this shortened duration was erroneous, and that the trial court should have set duration based on the terminating conditions in the I-864.
The I-864 beneficiary is represented by this blog's author, attorney Greg McLawsen. Arguments are set for June 23, 2014 at 9:00 at Court of Appeals Division II (950 Broadway, Tacoma, WA 98402).

What happens if an Affidavit of Support beneficiary unsuccessfully raises the issue of I-864 financial support during divorce proceedings? One court has recently held that she will be barred from bringing a federal lawsuit to subsequently enforce those rights.
In Yaguil v. Lee the foreign national wife asserted her right to financial support during divorce proceedings. 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D.Cal.,2014) (Order Granting Defendant's Motion to Dismiss). It is not clear that the I-864 was mentioned in the divorce pleadings, but the beneficiary did so in a "statement of issues" filed in the divorce action. She wrote, "[s]ince the separation (19[ ]months) my sponsor Mr. Gary Lee failed to comply the I-864[sic]." In argument before the federal court the beneficiary asserted that the I-864 issue was "apparently dropped" in the divorce action, though it appears there was no citation to the record to assert this claim.

Following entry of the divorce decree the beneficiary brought a federal lawsuit to assert her I-864 support rights. The sponsor/defendant moved for dismissal, arguing the suit was barred by res judicata.

The beneficiary appears have argued only that there was no "identity of claims" as required for res judicata to apply. The brief federal court order makes it difficult to assess the basis of this argument. Assuming an I-864 claim was raised in the divorce proceeding, it seems probable the claim is identical to seeking the same financial support in a contract action. At least part of the claim.

It's important to recognize that I-864 obligations continue following divorce. So unless the wife waived her right to subsequent support (assuming this can be done) she would continue to accrue new claims for each month in which the sponsor fails to provide financial support. If the beneficiary was seeking support for time periods after the divorce, it's unclear why the claims in Yaguil would be the same as support sought up to the time of the divorce.

The decision in Yaguil also does not address the question of whether there was a "final judgment on the merits" on the I-864 issue in the divorce action. It seems the only mention of the I-864 was in the "statement of issues." Moreover, it seems the I-864 was not mentioned in final orders from the family law court. At the very least the federal court orders makes no mention of such a citation. It is possible that beneficiaries in similar situations might successfully argue that the divorce court never passed on the merits of the I-864 claim.

The Yaguil matter is yet another reason for family law practitioners to be very careful about giving attention to the I-864. Family law practitioners should screen all clients - and their partners - for foreign citizenship. If either is - or was - a foreign national it's important to pro actively explore how that individual immigrated to the U.S. and whether an I-864 was executed.